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Put Your Money Where Your Politics Are

By Tobin Harshaw January 22, 2010 7:41 pmJanuary 22, 2010 7:41 pm

The Thread is an in-depth look at how major news and controversies are being debated across the online spectrum.

McCain-Feingold, that Quixotic attempt to turn money and politics into oil and water, was lanced by the Supreme Court on Thursday in a 5-4 decision based on the idea, espoused by Justice Anthony Kennedy, that “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” To some extent, most of us would agree on the “citizens” point — it’s that “associations” bit that’s the fly in the ointment for many.

“Making a mockery of some justices’ pretensions to judicial restraint, the Supreme Court unnecessarily and wrongly ruled 5 to 4 that the constitutional guarantee of free speech means that corporations can spend unlimited sums to help elect favored candidates or defeat those they oppose,” read The Washington Post’s editorial.

In hobbling McCain-Feingold, did the Supreme Court honor the First Amendment or hand our democracy over to the highest bidder?

“This overreaching by the majority, including Chief Justice John G. Roberts Jr., belies Roberts’ assurances to the Senate during his confirmation that he believed in judicial modesty and decision-making by consensus,” added The Los Angeles Times. “Instead, Thursday’s decision, with conservatives on one side and liberals on another, inevitably will encourage the impression that the court is just another political body.”

“With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century,” warned The Times editorial board. “Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.”

(It wasn’t unanimous, of course. Here’s The Wall Street Journal: “On Tuesday, Massachusetts put a Senate check on a reckless Congress, and yesterday the Supreme Court issued a landmark decision supporting free political speech by overturning some of Congress’s more intrusive limits on election spending. In a season of marauding government, the Constitution rides to the rescue one more time.”)

Not many punches pulled in any of those assessments — is the issue that cut and dried? Or can the blogosphere cast some light on a gray area? Not really, according to a post at the liberal site Prairie Weather, which holds that The Times’s assessment is “no exaggeration, except that the outcome is less about Republicans (corporations give to Democrats too, after all) than about handing our democracy over to transnational business interests.”

Where are we to find the real damages to free speech from this decision? Not every “corporation” has the same set of interests. Some will find their needs best suited by Democrats, while others will doubtless back Republicans. Similarly, well financed petroleum advocacy groups, for example, might back one candidate while a huge labor union might choose to back her opponent.

And what is left beyond that except an unrealistic demand that each individual voice in the country be given the same air time as the next? That idea is preposterous from the start. Should we assign the same amount of radio time to one individual who wants to outlaw the growing of broccoli as to ten million people who don’t want socialized health care or who want to legalize gay marriage? Volume in political speech comes from raw numbers of tongues as well as the bank balance of particular interest groups. A popular message will always find a way to be heard while fringe ideas are mostly left crying in the wilderness.

Indeed, it’s not like the restrictions really shut down paid attacks (and, I suppose, a few positive messages). “Recall, for example, that McCain-Feingold was supposed to end (or, at least, severely curtail) independent expenditures by groups not directly affiliated with the candidate,” writes Steven L. Taylor at Poliblog. “Instead, we got the dawn of the 527 groups (remember ye olde Swift Boat Veterans for Truth?). All this makes me think of what I have somewhat whimsically dubbed the Scotty Rule of Campaign Finance Reform: ‘The more they overthink the plumbing, the easier it is to stop up the drain.’ ”

Members of Congress and wannabe presidents … spend most of their waking hours raising money now. Corporations or their various PACs, 527s, and associated trade groups spend tremendous amounts of money on issue ads now. All yesterday’s ruling did is allow them to do it directly rather than through artifice. I’m reminded of Ross Perot, during his infamous NAFTA debate with Al Gore on “Larry King Live,” arguing that, were the treaty to go into effect, we’d have shanty towns all along the Mexican border doing light manufacturing. To illustrate his case, he produced photographs of the shanty towns all along the Mexican border doing light manufacturing.

He’s not the only one who finds such arguments mystifying. “The anguished cries of left-leaning folk over the Citizens United ruling seem to me to be emanating from an alternate universe, so bizarre are they,” writes Will Wilkinson. This was a case about whether the state can suppress the distribution of an unflattering documentary about a powerful political candidate produced by a small group of private citizens. The crazy thing to me is that anyone ever thought that such a rule was not in blatant violation of the First Amendment. The extra-crazy thing is that four Supreme Court justices evidently think this kind of state censorship of political speech is hunky dory.”

For a rational explanation, Wilkinson investigates the way in which the debate splits the political left:

I’m tempted to conclude that the divide between progressives and ACLU-style civil libertarians on this issue has to do with differences in our conceptions of the relationship between equality of democratic voice and the legitimacy of democratic elections. But I’m not sure that’s right. I suspect the real issue is more an empirical one about the actual balance of power with or without this kind of regulation. I see this ruling as vindicating the importance of equality of voice by protecting the rights of individuals and associations to speak out on behalf of their interests and values. Progressives clearly see the ruling primarily as some kind of corporate-empowerment initiative. But you can’t really take on Big Agra or Wall Street unless you can organize to speak out against the Chuck Grassleys and Chuck Schumers when it really counts. I wonder how we could go about gather evidence about the distribution of political power. I suppose coming to some agreement about what counts as political power would be the first step in settling the dispute.

Some are less concerned with messages getting heard that with knowing who is paying for them. The Sunlight Foundation, which seeks greater transparency in government, has ambivalent feelings about the decisions, appreciating the Justice Anthony Kennedy’s statement in the majority opinion that “with the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

But there’s a hitch, according to the group’s director, Ellen Miller. “While we are supportive of Justice Kennedy’s call for greater transparency, we still take issue with his belief that modern technology and the ability to quickly release campaign finance data alone will solve the problem. It is utopian to believe that making it easier to track corporate electoral activity even comes close to solving the problem of money in politics.”

So, was this primarily a Constitutional question or a pragmatic one? According to the liberal radio talker Taylor Marsh, it was a conspiracy centering around … the late wife of a former Republican solicitor general. Really: “I guess the right-wing figured that if they could get an election overturned through the Supreme Court, as they did in 2000, they could undo the American voters’ power the same way. And it worked. The emotional connection on this one was through Theodore B. Olson, whose wife, Barbara Olson, was killed on American Airlines Flight 77 on 9/11. Barbara Olson was a Hillary hater of the first order.”

I don’t know if yesterday’s Supreme Court ruling is really going to lead to the apocalypse predicted by so many, or if the corporate influence on American politics is already at its absolute maximum and this is merely going to alter the number of tools in the fat cats’ political influence toolkit … But I find myself having the same naive reaction to the notion of “corporate personhood” that I’ve always had when it’s come up: If corporations are persons in the eyes of the law, why has no one pursued the argument that we can do to corporations what we routinely do to persons, namely imprison and execute them?

The Moderate Voice’s Jazz Shaw also meditated on that concept of “whether or not corporations (or unions or other large entities) are actually ‘people’ in the sense of being entitled to first amendment rights.” His conclusion:

The conservative will quickly point out that the corporation may be an “entity” but it is comprised of people – perhaps tens of thousands of them – who have earned money through dint of hard labor, and should be able to exert that force in the form of political voice. The liberal will cluck his tongue and point out that the vast majority of the workers are primarily concerned with keeping their jobs and securing their paycheck, while the decision to use corporate funds for political speech is made by at most a handful of people at the top … This conversation can – and does – go on for days, and it applies equally to labor unions who may be supporting the exact opposite platform of the one endorsed by the corporation. As I said initially, it’s an important topic of discussion and not nearly as clear as some on either side might wish to make it appear.

Timothy B. Lee at Bottom-Up, however, thinks one side of that discussion is perfectly clear. “I think it’s important to remember that ‘corporations’ encompass much more than large, for profit businesses,” he writes. “They also include a wide variety of non-profit and advocacy groups, including groups like the ACLU, the NRA, and NARAL that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.”

The central line of argument in Justice Kennedy’s majority opinion — that the First Amendment does not permit distinctions based on the identity of the speaker — is superficially attractive. The problem is, there’s no reason to believe that any of the justices believe it. In addition to the examples in Justice Stevens’ superb dissent, consider Morse v. Frederick, a decision denying a free speech claim which all 5 of the justices in today’s majority also joined. Obviously. Nobody would dispute that an ordinary citizen who unfurled a “Bong Hits 4 Jesus” banner could be sanctioned by the state; the punishment was upheld solely based on Frederick’s identity as a student, which meant that his free speech rights had to be balanced against a school’s interest in preventing drug use (and could be denied even if there was no plausible argument that his speech actually would promote drug use). If this kind of balancing test is permissible, surely Congress should be permitted to place some weight on the importance of fair elections when considering the First Amendment rights of for-profit corporations.

Reason’s Jacob Sullum makes the point that hypocrisy can cross party lines, taking issue with President Obama’s statement that “a green light to a new stampede of special interest money in our politics” and “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Sullum responds:

Since Obama is one of the main people spurring the stampede and facilitating the drowning out, you have to give him points for chutzpah, especially since these comments come less than a week after he blatantly pandered to one of those powerful interests by cutting a deal with the labor unions that objected to his proposed tax on “Cadillac” medical benefits, in the midst of a much-ballyhooed spending binge that has stimulated lobbying more than the economy, and while he is trying to salvage a health care plan that has garnered much support from powerful special interests (including those nasty insurance companies), who have outspent opponents on advertising by 5 to 1.

So, where does this leave us. According to the institutional voice of The Times, “Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join.” The Journal feels that “a sensible step now would be for Congress to remove all campaign-finance limits subject only to immediate disclosure on the Internet.”

The solution is to bring everything online? I can see the appeal, but why do the citations above lead me to think that the Internet may not bring about total clarity?

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The Thread is an in-depth look at how the major news events and controversies of the day are being viewed and debated across the online spectrum. Compiled by Peter Catapano, an editor in The Times’s Opinion section, the Thread is published every Saturday in response to breaking news.